Justices Press State During McCleary Contempt Hearing

State, facing skeptical justices, asks for more time to fund K-12.

As the school year started this week, the Washington State Supreme Court held its special hearing today on K-12 funding.

Last June, the Court ordered the state to explain why it shouldn't be held in contempt for failing to meet the Court's 2012 McCleary decision to fully fund schools as mandated by Article IX, Section 1 of the Washington state constitution. The state constitution says "It is the paramount duty of the state to make ample provision for the education of all children residing within its border."

After the court's December 2012 ruling, the state didn't come up with the money nor a plan during the 2013 session. At the start of the 2014 session, the Court sternly reminded the legislature it was time to act. The Democratic house (which wanted to close tax breaks) and Republican senate (which belittled the court and called for more reforms) couldn't agree on much last session—and so, though they had called an emergency session to give Boeing a batch of tax breaks worth $8 billion the previous Fall (as Justice Mary Fairhurst noted sourly today), the legislature failed to come up with a K-12 funding plan this year.

In June, the Court threatened them with contempt.

Among the contempt punishments, the Court is considering imposing monetary sanctions, prohibiting other expenditures, ordering specific K-12 funding legislation, and ordering the sale of state property to fund K-12 education. And today, conservative Supreme Court Justice Charles Johnson floated another one: Repealing the 600 tax breaks on the books, forcing the legislature into a sort of reverse zero-based budgeting game, where they'd have to wrestle with reauthorizing each one as they simultaneously tried to come up with a school funding plan.

State Counsel Alan Copsey

The legislature did put about $1 billion extra into K-12 education this biennium. However, nonpartisan staff estimated that the state needed to put about $1.4 billion extra into K-12 over this biennium. (It's also important to note that about $500 million of the $1 billion came in one-time funds and transfers.)

The court documented the shortfall in its January 2014 warning—a follow-up to the original McCleary ruling—and also said that teacher compensation needed to bumped up by about $1.5 billion by 2018, increasing the demand on the state. Overall, with the salary increases, this biennium's $400 million shortfall, and non-partisan estimates calling for an additional $2 billion in K-12 funding for the next biennium and another $1.2 billion extra in the biennium after that—on top of the roughly $15 billion per biennium status quo that's needed to cover existing costs—the state is looking at finding an extra $5 billion over the next four years.

Conservative Justice Charles Johnson suggested Repealing the 600 tax breaks on the book and forcing the legislature into a sort of reverse zero-based budgeting game, where they'd have to wrestle with re-authorizing each one as they simultaneously tried to come up with a school funding plan.

The state counsel Alan Copsey argued today that a contempt order was unnecessary because the state had gotten the message—school funding was "on every legislator's lips," he said—and, alluding to the GOP's touchiness about a supposedly activist court—he argued that holding the legislature in contempt would "divert the conversation" and be "counterproductive."

Essentially, Copsey argued—to skeptical questions and comments from frustrated justices like Justice Susan Owens ("Presumably it [funding schools] had been on everybody's mind in 2013, and yet here we are and not much has been accomplished")—that the Court should let the legislature come up with a funding plan during the upcoming 2015-2017 session, a budget-writing session that's more geared toward large-scale funding issues.

Justice Debra Stephens

The justices pounced. Justice Debra Stephens pointed out that the legislature had blown it after the Court's January order in advance of the 2013-2015 session (and again after the Court's January 2014 warning, by the way). "This Court issued its decision in 2012," she said, "what is the fundamental difference between what can happen in the 2015 legislature as opposed to 2013, also a long session, also a budget writing session?"

Copsey said "the passage of time" is the big difference. Finding agreement between Democrats and Republicans on where the money will come from, he explained, "takes time to resolve."

Justice Charles Wiggins

Justice Charles Wiggins wasn't satisfied, and reiterated Stephens' point. "What I hear you saying is 'give us more time,'" Wiggins said, "but in December of 2012 this Court said 'come up with a plan and do it in the next session.' In 2013, that didn't happen. This year, in January, we said, 'come up with a plan.' That didn't happen. Now we're saying 'come up with a plan," and you're saying, 'wait, wait, we need more time.'"

Wiggins went on to spell out the famous definition of insanity—repeatedly doing the same thing and expecting a different result. "Why should we think you're going to do something different?"

Copsey simply said: "Will the legislature be able to come to an agreement in 2015? I hope so."

"What is the purpose of separation of powers? Is it to protect government officials who violate the constitutional rights of citizens? Or is it to protect the citizens whose constitutional rights are being violated?"

Counsel for the McCleary plaintiffs, Thomas Ahearne, agreed that time was the big factor and lamented that the legislature's inaction was wasting generations of shcool kids. He noted how his clients' kid had gone from a cute little elementary school kid to a young man in highschool since the case had originally been filed in 2007.

"The plaintiffs respectfully submit that if this Court adopts that kick-the-can-down-the-road-for-another-year approach," Ahearne said, the Court's "Justice: Yesterday, Today, and Tomorrow" moniker should be changed to: "Justice... maybe next year ... if ... the other branches say it's okay."

McCleary counsel Thomas Ahearne

As for the subtext of the state's argument—that an order of contempt would rile the Republicans and jeopardize negotiations—Ahearne, referring to the state constitution's "paramount duty" mandate to fund K-12 education, asked: "What is the purpose of separation of powers? Is it to protect government officials who violate the constitutional rights of citizens? Or is it to protect the citizens whose constitutional rights are being violated?"